A Concise History of the Common Law. Theodore F. T. Plucknett

to the opposite extreme of technicality when it had adopted the summary procedure of the civil law—which was far from summary according to modern ideas. No doubt the example of Chancery was influential here, as also in its claims to administer equity. Later in Elizabeth’s reign the presence of civilians in the Court of Requests led that court to exercise a wide Admiralty jurisdiction, including mercantile as well as maritime and prize jurisdiction.⁴

COURTS OF THE MARCHES

Exercising concurrent jurisdiction with the Council and the Star Chamber were two other courts, the Council of Wales and the Council of the North. These remarkable bodies combined with the utmost facility the political business of governing Wales and the North (where there was considerable unrest at this time) with such judicial duties as seemed to them expedient. They controlled local government within their area, and acted as courts of equity and of extraordinary criminal jurisdiction.

ROYAL CHURCH COURTS

      The Reformation statutes necessitated the creation of yet more special courts to enforce their provisions and carry out their policy. Appeals which once went from the archbishop to the pope were reserved by a statute of 1534 to the King, who was to follow the papal practice of commissioning delegates to hear them.¹ Hence there was created the High Court of Delegates. The judges were not permanent but nominated ad hoc for each case, and, as they were paid latterly but a guinea a day, only very junior men would consent to act, and so the court enjoyed very little esteem.² Its powers are now exercised by the Judicial Committee of the Privy Council.

      The Act of Supremacy³ conferred upon the Crown the whole remaining jurisdiction of the pope, and to exercise this immense and vague authority commissions were issued from time to time, which finally became stabilised in their content, and the persons empowered to act by them became known as the Court of High Commission.⁴ It consisted mainly of bishops and devoted itself largely to the criminal side of the ex-papal jurisdiction. Its proceedings were later likened (with some justice) to those of the continental inquisitions, so severely did it search for ecclesiastical offenders.⁵

EQUITY SIDE OF THE EXCHEQUER

In 1415 the Commons believed that John of Waltham, who died in 1395, had invented the writ sub poena in the reign of Richard II (1377-1399), and complained of its use in the Exchequer as well as in the Chancery.⁶ This seems to be the first reference, faint and doubtful as it is, to a court of equity in the Exchequer in the modern sense. Its history is by far the most obscure of all the English jurisdictions, and all that seems known of it is that it acted as a court of equity, duplicating to some extent the Chancery during the seventeenth and eighteenth centuries,¹ and indeed down to 1842 when its jurisdiction was transferred to the Chancery.

EQUITY IN SEIGNORIAL COURTS

      A remarkable and illuminating parallel to the development of equity beside the common law courts of the Crown is to be found in the history of certain great seignorial estates, especially those of the abbey of St Albans, many of whose archives have survived. The abbot had courts in the several manors, and also a central court which supervised the estates as a whole. These may be called his “common law” jurisdictions. Already in 1308, however, we find that the abbot had a council,² and in 1338 we find that council legislating on the rules of succession governing the abbey’s tenants,³ and towards the end of the century this council had a civilian and canonical element: in 1381 the insurgent villeins chased away the doctors of both laws, saying that they would not henceforth submit to the civil or the canon law.⁴ The movement and the antipathy towards it were not confined to St Albans, for a few years later a royal statute recited

      “the grievous complaint of the commons made in full parliament for that many of the king’s subjects are made to come before the councils of divers lords and ladies, to answer there concerning their freeholds and many other things real and personal which ought to be conducted according to the law of the land; against the estate of our lord the king and his crown, and in defeasance of the common law.”⁵

The need for newer institutions was therefore felt both in royal and in seignorial judicial systems, and in both it was the conciliar form which was tried. Moreover, in both systems there was a tendency to turn to civilians and canonists. In England, the seignorial council of civilians had much less influence than on the continent, where the influence of civilians is said to have done much to depress the position of the peasantry and to prevent their gradual rise in status.¹ The growth of copyhold and its recognition as a “customary” freehold in England had the result of gradually and almost imperceptibly enfranchising the villeins, but this would hardly have been possible if the civilians had succeeded in imposing their distrust of custom.²

RELATIONS OF THE OLD COURTS TO THE NEW

      In the middle ages, as now, the appearance of new institutions, making light of the solemnities of dogma and procedure which were dear to practitioners before the older courts, aroused some fear and more resentment. Then, as now, conservatives were persuaded that the constitution (or the common law) was in danger, and the first impulse was not to reform the old, but to attack the new order of courts.

The rolls of the mediaeval English parliaments contain numerous petitions and acts directed against the Council and the Chancery. The promise of justice in the Great Charter³ was regarded as a declaration that the common law courts, and they alone, had jurisdiction over the lives, persons and property of Englishmen. In 1331 its provisions were pointedly re-enacted;⁴ in 1352 it was again recited and the King had to promise that the Council would not proceed without indictment or common law process on an original writ;⁵ although this was confirmed several times, we find in 1363 another attempt to enforce this construction of the charter—the Council must take security from complainants, and even then proceed only by common law.⁶ In 1368 the Commons once more tried to insist upon indictment or original writ as the sole foundation for legal proceedings.⁷ All these statutes denouncing the council were obviously ineffective, despite the show of assent given to them by the Crown. In 1389 the Chancellor is coupled with the Council in a petition to which Richard II only replied with a saving of the royal prerogative.⁸ The tide was on the turn. A statute of 1394 tried a different policy by allowing the Chancellor to award damages to a defendant when the plaintiff’s suit appeared founded upon falsehood,¹ but the fall of Richard II brought back the older type of remonstrance. In 1415 the writ sub poena was denounced as a subtlety invented in the previous reign by John Waltham, and the examination of parties and witnesses without lawyers and without records and the use of civil and canon law forms were again vigorously denounced. The petition was bluntly rejected by the King.² Another in 1421 which alleged that a sub poena was not “due process” was likewise refused.³ Clearly the Council and the Chancery were now solidly established. Indeed, for the future, legislation took the opposite course of increasing the powers of the Chancellor and the Council by a series of acts⁴ of which the act pro camera stellata⁵ is only one example.

      The petition of 1389 was therefore the first to which the Crown ventured a refusal, and that of 1394 begins a line of statutes which accept and even enlarge the jurisdiction of the Chancellor and Council. We may therefore conclude that during the fifteenth century the Commons were gradually reconciling themselves to the existence of a jurisdiction which the country at large seems to have welcomed, and their protests can be largely ascribed to the professional common lawyers who largely directed its proceedings.

COMMON LAW AND EQUITY IN THE FIFTEENTH CENTURY

Whatever the bar may have thought about the problem, the common law judges seem to have been prepared to work with the Chancery in a spirit of co-operation. They were constantly in consultation with the Council and the Chancellor, both for the statutory purposes